When is an Item Common Enough to be used as Criminal Defense? Part One

I recently read an interesting article about the ever-changing legal precedence due to certain items, especially technology, becoming more and more commonplace.  The article cited a few cases that I would like to discuss in parts.

Question: Does a cell phone found with drugs indicate intent to distribute?

In State v. Brooks, 2011 Ohio 1679, ¶¶6, 23 (Ohio Ct. App., Cuyahoga County April 7, 2011), the defendant had been stopped for speeding in a school zone, and then admitted he was driving with a suspended license. During a pat down, the arresting officer discovered a “‘little baggie of marijuana,’ two cell phones, and $24” in defendant’s coat pocket. A search of the car revealed a baggie containing what appeared to be crack cocaine, as well as a loaded gun.

Brooks had been charged with drug trafficking and other offenses. On appeal, the court held that there was insufficient evidence to sustain a conviction on the possession of criminal tools count.

Brooks argues that, aside from merely possessing two cellphones and $24, there is no evidence that the items were used for any drug-related activity. As this court recently observed, ‘the ubiquitousness of cell phones is such that the mere possession of a cell phone is not ipso facto proof that it was used in drug trafficking.’ State v. Byers, 8th Dist. No. 94922, 2011-Ohio-342, ¶9. Indeed, without any evidence showing that Brooks actually used the cellphones to aid in the trafficking of drugs, we find his mere possession insufficient.

This is good news for the ubiquitous mobile phone user. Otherwise, “mere possession” of personal information technology might be considered an element of criminal activity.

The drug laws in Louisiana are very tough. The defense to these charges requires an attorney that is knowledgeable and experienced in the area of defending drug charges. I have handled hundreds of drug cases, many through suppression hearing and trial.  I examine every case to determine if the stop and search by law enforcement was illegal. Furthermore, the drug charge of Possession with Intent to Distribute carries harsh penalties in Louisiana.  The sentencing range depends on the alleged drug.  All controlled dangerous substances are placed into a specific Schedule.  However, these charges can carry mandatory minimum sentences of imprisonment.  If you or someone you know is facing drug charges contact Baton Rouge Criminal Lawyer Carl Barkemeyer.

Source: www.law.com, “The Commonality of Technology as Defense,” November 28, 2011